Integrated Health v. Nat'l Labor Rel.

Citation191 F.3d 703
Decision Date06 November 1998
Docket NumberNos. 97-6034,97-6109,s. 97-6034
Parties(6th Cir. 1999) Integrated Health Services of Michigan, at Riverbend, Inc., Petitioner/Cross-Respondent, Teamsters Local 332 (97-6034), Intervenor, v. National Labor Relations Board, Respondent/Cross-Petitioner. Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Brad A. Rayle, HOWARD & HOWARD, Bloomfield Hills, Michigan, for Petitioner.

Wayne A. Rudell, RUDELL & O'NEILL, Dearborn, Michigan, for Intervenor.

Anne Marie Lofaso, Aileen A. Armstrong, NATIONAL LABOR RELATIONS BOARD, APPELLATE COURT BRANCH, Washington, D.C., Margaret Ann Gaines, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent.

Before: JONES, RYAN, and BATCHELDER, Circuit Judges.

RYAN, J., delivered the opinion of the court, in which BATCHELDER, J., joined. JONES, J. (pp. 712-13), delivered a separate opinion concurring in the judgment.

OPINION

RYAN, Circuit Judge.

Once again, in a case involving nurses, the National Labor Relations Board has refused to apply § 2(11) of the National Labor Relations Act, 29 U.S.C. § 152(11), as this court has interpreted it; and so, once again, we deny their petition for enforcement. And again, contrary to our previous cases, the Board has assigned the burden of proving supervisory status to the employer; and so, once again, we instruct the Board to follow our precedent. We conclude that the nurses employed by the petitioner, Riverbend, are supervisors within the meaning of § 2(11), and, again, we admonish the Board for its unremitting refusal to follow the law as we have declared it.

I.

Riverbend is a 157-bed facility that provides "subacute" nursing care in Grand Blanc, Michigan. There are 83 beds for patients in long-term care and 74 for patients making a transition between hospital care and going home. There are five separate "nursing care units," two of which provide care to elderly patients and three of which provide care to patients of all ages in the Medical Specialty Unit (MSU). The MSU is designed to care for more complex, or "acute" patients, who require rehabilitation, life support, or other medically complex care.

Local 332, International Brotherhood of Teamsters, AFL-CIO, intervenor in this case, sought to organize and represent approximately 50 full- and part-time Registered Nurses (RNs) and Licensed Practical Nurses (LPNs) employed at Riverbend. The unit for which the union petitioned includes the RNs and LPNs, collectively referred to as "staff nurses." But, the parties agree, it does not include the following: the Director of Nursing (DON), the Assistant Director of Nursing, the Clinical Coordinator, the Minimum Data Set Coordinator (MDS), the Restoration Coordinator, the Staff Development Coordinator, the Assistant MDS Coordinator, or the Wound Care Coordinator. The DON reports directly to the facility's executive director, while the other seven administrators report directly to the DON. In addition to the administrators, and RNs and LPNs, Riverbend employs approximately 40 to 50 competency evaluated nursing assistants (CENAs).

The facility operates on three eight-hour shifts: 7 a.m. to 3 p.m., 3 p.m. to 11 p.m., and 11 p.m. to 7 a.m. The nurses and the CENAs are trained to work on any of the shifts and in any of the units. On weekdays, between the hours of 7 a.m. and 4-to-5 p.m., the administrative personnel are present, as well as a first shift "charge nurse" who oversees the three units that make up the MSU. During the second and third shifts on weekdays, after administrative personnel depart, a second or third shift "house supervisor" is present. On weekends, the administration is not present, and each shift is overseen by the first shift charge nurse or the second or third shift house supervisor. The charge nurse or house supervisor acts as the highest ranking nurse and manger during his or her shift. When the regular charge nurse or house supervisor is not present, "first alternates" frequently substitute, while "second alternates" infrequently substitute. The parties stipulated below that the first shift charge nurse, second shift house supervisor, and third shift house supervisor were "supervisors" for the purposes of § 2(11). Thus, the dispute here is confined to the status of the staff nurses, including those who frequently or infrequently substitute for the charge nurse or house supervisor.

After a hearing on the union's petition to represent the nurses, the Regional Director for NLRB Region 7 issued a Decision and Direction of Election in which he found that the staff nurses were not supervisors under § 2(11) and ordered an election. The Board denied Riverbend's petition for review as it related to the Regional Director's decision that the staff nurses were not supervisors. After the election, which the union won, the Regional Director certified the union as the exclusive collective bargaining representative of the requested unit of nurses. The Board denied Riverbend's request for review of that decision, and Riverbend subsequently refused to bargain with the union, resulting in an unfair labor practice charge before the NLRB. In response to the Regional Director's complaint, the Board issued a decision and order finding the refusal to bargain unlawful and granting summary judgment against Riverbend. The Board did not address the supervisory status issue because it had been litigated in the representation proceeding. Riverbend brought a petition to review and set aside the Board's judgment and the Board petitioned for enforcement of its bargaining order. For the reasons that follow, we deny the petition for enforcement and hold that the Riverbend staff nurses are supervisors within the meaning of § 2(11).

II.

We review the Board's legal conclusions de novo and its factual findings to determine whether they are supported by substantial evidence on the entire record. See NLRB v. Good Shepherd Home, Inc., 145 F.3d 814, 816 (6th Cir. 1998); Grancare, Inc. v. NLRB, 137 F.3d 372, 375 (6th Cir. 1998).

III.

Riverbend contends that, given the relationship between the staff nurses and the CENAs, the staff nurses are supervisors and, therefore, exempt from the collective bargaining unit under 29 U.S.C. § 152(11). The Board and the union contend that the decision below is legally correct and supported by substantial evidence. We conclude that the Board's decision is not supported by substantial evidence and that the Board's understanding of the governing law is mistaken.

A.

The NLRA applies to "employees," as defined in 29 U.S.C. § 152(3); see, e.g., 29 U.S.C. §§ 157, 158. Individuals employed as supervisors are specifically excluded from the definition of employee. See id. The NLRA defines "supervisor" as

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

29 U.S.C. § 152(11). Thus, an employee is a supervisor if he (1) has the authority to engage in any one of the activities enumerated in § 2(11), (2) uses independent judgment in that activity, and (3) does so in the interest of the employer. SeeGrancare, 137 F.3d at 375; Manor West, Inc. v. NLRB, 60 F.3d 1195, 1197 (6th Cir. 1995); Health Care & Retirement Corp. of Am. v. NLRB, 987 F.2d 1256, 1261 (6th Cir. 1993), aff'd, 511 U.S. 571, 573-74 (1994). The inquiry into supervisory status is "fact-intensive"; however, we have been forced to admonish the Board in several cases for its defiant insistence on its "unique" misapprehension of the manner in which § 2(11) applies to nurses. Caremore, Inc. v. NLRB, 129 F.3d 365, 371 (6th Cir. 1997).

We have also repeatedly explained that "[t]he Board has the burden of proving that employees are not supervisors." Grancare, 137 F.3d at 375. Yet, in this case, as in many others, the Board endorsed the statement that "[a] party seeking to exclude an individual as a supervisor has the burden of establishing such status." Because we have indicated in Grancare, 137 F.3d 372, NLRB v. Beacon Light Christian Nursing Home, 825 F.2d 1076, 1080 (6th Cir. 1987), and elsewhere that employers do not bear this burden, the Board's analysis in this case rests upon a false legal premise. Indeed, the Regional Director's decision concluded that the RN and LPN staff nurses are eligible to vote in the election because "the Employer has not sustained its burden of establishing that the staff nurses possess supervisory authority within the meaning of the Act." (Emphasis added.) Thus, we find ourselves in a difficult position when faced with the task of reviewing the Board's decisions in these cases because, as a threshold matter, the Board views the relative strengths and weaknesses of the evidence from an entirely wrongheaded perspective. On this basis alone, the Board's petition for enforcement is subject to denial. Nevertheless, noting the proper burden, and the Board's recalcitrant failure to observe it, we proceed to an analysis of whether the Board erred in deciding that the staff nurses in this particular case were supervisors under § 2(11).

B.

We agree with the Board that the staff nurses do not have independent authority to hire, discharge, transfer, promote, demote, lay off, recall, reward, or suspend the CENAs. However, the Board also concluded that the staff nurses' alleged responsibility to independently schedule, assign, and direct the CENAs' work is not supervisory because it is of a merely routine or clerical nature, and, thus,...

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